Citation Nr: 1335339 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-08 918 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to September 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied the Veteran's claim for TDIU. After the decision was entered, the case was transferred to the jurisdiction of the RO in Indianapolis, Indiana. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. Review of the electronic file does not reveal any additional documents pertinent to the present appeal, with the exception of an August 2013 brief from the Veteran's representative. For the reasons set forth below, this appeal is being REMANDED to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if further action is required on his part. REMAND The Veteran maintains, in essence, that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. § 4.16 (2013). At present, his sole service-connected disability is status post-operative recurrent low back strain with degenerative disc disease. The disability has been rated 60 percent disabling since August 29, 1994. In his substantive appeal, dated in February 2010, the Veteran raised the issue of his entitlement to compensation benefits under 38 U.S.C.A. § 1151 for disability of the cervical spine, claimed as due to VA treatment in June 1998. The record presently before the Board does not reflect that the RO has adjudicated that claim. Because a favorable determination on the claim for compensation benefits under 38 U.S.C.A. § 1151 could affect the outcome of the claim for TDIU, inasmuch as it would expand the universe of disabilities considered in determining entitlement to TDIU, the § 1151 claim is inextricably intertwined with the claim for TDIU and must be adjudicated by the RO prior to the Board's adjudication of the TDIU claim. See 38 U.S.C.A. § 1151 (West 2002) (compensation under § 1151 is awarded "in the same manner as if . . . service connected"); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Consequently, a remand is required. (The Board notes that the fact that an unadjudicated issue is inextricably intertwined with an issue on appeal does not establish that the Board has jurisdiction of the unadjudicated issue; only that the Board cannot fairly proceed with the appeal while there are outstanding matters that must be addressed by the RO in the first instance. Thus, the § 1151 claim should not be returned to the Board unless an appeal of that claim is properly perfected.) As to the impact of the Veteran's service-connected low back disability on his ability secure or follow a substantially gainful occupation, the Board notes that the Veteran last underwent a VA spine examination, for compensation purposes, more than five years ago; in October 2008. Since that time-to include in his February 2010 substantive appeal-he has suggested that his condition has gotten worse, inasmuch as he is (was) taking six Vicodin daily (as of February 2010) for control of pain. Under the circumstances, another examination is required. See, e.g., 38 C.F.R. § 3.327(a) (2013) (re-examinations are generally required if evidence indicates that there has been a material change in a disability or that the current rating may be incorrect). Records of the Veteran's treatment through the VA Medical Center (VAMC) in Indianapolis, Indiana were last procured for association with the claims file on December 22, 2009. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). In January 2013, the Veteran submitted additional evidence to the Board, without a waiver of initial RO review. See 38 C.F.R. § 20.1304(c) (2013). The RO/AMC will have an opportunity to review that evidence on remand. For the reasons stated, this case is REMANDED for the following actions: 1. Ask the Veteran to provide appropriate releases for any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he responds, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 2. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the VAMC in Indianapolis, Indiana since December 22, 2009, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 3. After completing the foregoing development, to the extent possible, and any other development deemed necessary, the RO should adjudicate the matter of the Veteran's entitlement to compensation benefits under 38 U.S.C.A. § 1151 for disability of the cervical spine, claimed as due to VA treatment in June 1998. 4. If the claim for compensation benefits under 38 U.S.C.A. § 1151 is denied, the RO must inform the Veteran and his representative of the decision and of his appellate rights. If a notice of disagreement is timely filed, the RO should address the matter in a statement of the case (SOC) and afford the Veteran and his representative an opportunity to timely file a substantive appeal. 5. Thereafter, arrange to have the Veteran scheduled for an appropriate VA examination for purposes of obtaining an opinion as to the impact of the Veteran's disability(ies) on employment. The claims file must be made available to the examiner, and the examiner should indicate in the report of the examination that the claims file has been reviewed. After examining the Veteran, and conducting any evaluations, studies, and/or tests deemed necessary, the examiner should fully describe any and all functional deficits associated with the Veteran's service-connected low back disability. The examiner should also offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected low back disability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. If the Veteran's claim for compensation benefits under 38 U.S.C.A. § 1151 for disability of the cervical spine has been granted, the examiner also should fully describe any and all functional deficits associated with the disability(ties) of the cervical spine for which § 1151 compensation has been established. The examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of such cervical spine disability(ies), either singularly or together with the service-connected low back disability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. If consultation with one or more specialists is deemed necessary, that should be accomplished. A complete rationale for all opinions should be provided. 6. After conducting any additional development deemed necessary, the issue on appeal should again be reviewed. If the benefit sought remains denied, furnish a supplemental SOC (SSOC) to the Veteran and his representative, and afford them an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2013).